If it's on a website, usually there is a link to the small print. Or if it's a shrinkwrap license, the terms are in the software or in a brochure or on the internet. The terms are out there. Just because sometimes the terms aren't known until after the purchase is made doesn't make them any less enforceable or agreed to. There's tons of case law out there about contract formation, and fact is that contract law is centuries old. Most of the stuff is governed by state law or the UCC. Just because you don't understand it, don't assume that it doesn't make sense. This stuff is well-settled as commerce has been around way longer than any of us.
Let's enforce all laws on the books with equal fervor, not just the violent crimes known as felonies, but also the little known and long ago forgotten laws we all agree are simply ridiculous - because, you know ... that's the law.
for example, in New York:
- It is illegal for a woman to be on the street wearing “body hugging clothing”.
but also a
- Women may go topless in public, providing it is not being used as a business.
In California:
- You may only throw a frisbee at the beach in Los Angeles County, CA with the lifeguard’s permission.
and
- Nobody is allowed to ride a bicycle in a swimming pool.
I'm sure there are a few "dumb laws" on the books. Laws are written by humans, and no human-built system is perfect. Moreover, through prosecutorial discretion, those laws aren't enforced. But so what? You throw out the FUD but you don't say what you think it means.
Are you suggesting that if you can find one "dumb law," then that means we can all rightfully violate other people's copyright rights? I think that argument is just sad.
As JFK said, if you put yourself above the law, then you do injustice to your neighbor. I know such talk of duty and honor doesn't ring true with many of Mike's Gang, but I would hope that such notions mean something to you, abc.
I'm not re framing anything, you stated "copyright is law" and that is "the correct answer". So, yeah - go after orphans and grannies for a civil infraction all the while claiming you are in the right because of the law but don't start whining when people call you a dirt bag. It's pretty simple really, I'm surprised you do not get it.
Whine all you want about the law, but respect it because it is the law. As JFK put it:
This is as it should be, for our Nation is founded on the principle that observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny. The law which we obey includes the final rulings of the courts, as well as the enactments of our legislative bodies. Even among law-abiding men few laws are universally loved, but they are uniformly respected and not resisted.
Americans are free, in short, to disagree with the law but not to disobey it. For in a government of laws and not of men, no man, however prominent or powerful, and no mob however unruly or boisterous, is entitled to defy a court of law. If this country should ever reach the point where any man or group of men by force or threat of force could long defy the commands of our court and our Constitution, then no law would stand free from doubt, no judge would be sure of his writ, and no citizen would be safe from his neighbors.
Don't feel sorry for me. I know what I'm getting into when I speak the unwanted truth in Mike's little pirate den. What I can't ever figure out, though, is why they think copyright is so dumb and that it never produces anything of value, but then they value copyrighted works so much that they're willing to violate other people rights to get them. At bottom, they just want content for free, and they're too selfish to think about anyone other than themselves. They flock to TD where the Lord High Apologist gives them all the absolution they need. But inside, they know it's wrong. Well, at least the non-socipaths do.
"That's not what I said. I said that Congress decides the term for copyrights. Like it or not."
Yes, and like any open appeal to authority shill, the law is the law and the end-all, be-all in your eyes. Because they can never be wrong after all.
With people like you in the world, we get the following historical examples of "the law" in action:
"Get to the back of the bus, old negro woman! Go where you belong!"
"Get off these school grounds little negro girl! Go to school with your own kind! Stop infecting our white children!"
"Back to work n*gger! Pick that cotton or I'll have you beaten some more! The law says I can do what I want with you!"
What a world you live in. It's no wonder you support anything that extends or expands authority of those at the top at the expense of everyone else.
Wow. Are you really comparing your need to not pay for recreational content on par with slavery and institutionalized racism? You guys get more deluded each day. We're talking about someone's property rights in a work that they spent time, money, and energy creating. Practically every country on this planet recognizes these rights, and many consider them to be human rights. And you think that since there was once slavery, that means you are justified in ignoring these property rights? Wow. Just wow. You guys are really quite pathetic. Mike's bread and butter, but pathetic.
You will rationalize it any way you want. But at the end of the day, when you take something that's not yours to take, you're no better than a common pickpocket. Of course there will always be piracy, as there will always be heroin addicts, thugs, and thieves. And there will always be good people like me who respect the system and play by the rules. Unlike the pirates, I value everyone's rights.
That's not what I said. I said that Congress decides the term for copyrights. Like it or not. And the parties to a contract set the terms of the contract. If you don't like the licensor's terms, don't contract with the licensor. That's the way the real world works. Strange how you guys constantly whine about it.
The Copyright Act is a duly enacted statute. We live in a representative democracy. If you want a direct vote in what statutes get passed, run for office. If you don't like the terms Apple or others use, don't do business with them.
The duration of copyright is what Congress has set it to be. The duration of a contract is what the contracting parties agreed to. Two different things entirely.
I'm sure you and many TD regulars are pirates. You're Mike's bread and butter--his target demographic. Personally, I respect other people's rights like a grown up. You wouldn't understand.
The simplest answer is that the big legacy entertainment industry players have lobbyists. And their customers do not. So we've created a system that massively favors one side over the public -- despite the fact that, if we believe the US Constitution, copyright is supposed to be for the benefit of the public.
The correct answer is that copyright lasts for lifetime + 70 because that's what's provided in the Copyright Act. And if you agreed to license works with a condition that the license terminates at death, then that's what you agreed to and that's what happens. If you don't like the license, don't do business with the licensor. This isn't rocket science, and your trotting out the Constitution--again--is just stupid. This has nothing to do with the Constitution.
It comes down to knowledge and intent. Once the search engine has knowledge that a specific link points to infringing material, it is imputed with the intent to cause whatever infringement happens when users click on that link.
Just adding a statement that they don't have knowledge won't mean a thing if the plaintiff can show there was actual or constructive knowledge.
The DMCA safe harbors would protect the search engine, but again, only if the search engine has no knowledge, either actual or constructive, of the infringing link.
Returning revenues to the right holder would be a nice gesture, but it would have no bearing on the issue of liability. The search engine would still be liable for the infringing links it knowingly provided.
Google avoids liability because it takes down infringing links when given notice of their existence. Thus, Google doesn't knowingly and intentionally provide any infringing links.
Those are great points. Google takes down links from its search results when it receives notice that the link points to infringing material. The reason it does so is that once it has knowledge that the link is infringing, Google becomes liable for whatever infringement happens using the link it thereafter provides.
The law imputes the intent to cause the natural consequences of its action. Providing a link to infringing material naturally causes infringement to occur by those who click on the link. So one who knowingly provides a link to infringing material is liable for infringement.
Linking websites like the one at issue here are liable for the infringement that occurs via the links provided. Quiroa can't claim to not have knowledge (i.e., intent) like Google can with its search results. He knew the links he provided were for infringement, so he's responsible for the infringement that occurs using the links.
What I don't get is if Posner has ruled Embedding Infringing Videos Is Not Copyright Infringement, And Neither Is Watching Them then how can a link site be infringing or committing any criminal act by providing a link to where the non infringing content is?
I would recommend reading what actual lawyers say about the case. Mike's reading of it is a bit off.
They explain that linking to infringing material can itself be infringement, though they argue that it's indirect (but not direct) infringement:
To say that linking can never be direct copyright infringement is not to say that linking can never lead to copyright liability of any sort. Copyright law has well-developed doctrines of secondary liability—contributory infringement and vicarious infringement—which can hold liable a culpable party when that party has not, himself, done an act which directly infringes one of the exclusive rights. The specific requirements of these doctrines may be inquired into in the context of linking in the same way that they are applied to any other activity. “To support a claim for contributory copyright infringement, a plaintiff must demonstrate (1) direct infringement by a primary infringer, (2) the defendant’s knowledge of the infringement, and (3) the defendant’s material contribution to the infringement.” Monotype Imaging, Inc. v. Bitstream, Inc., 376 F. Supp. 2d 877, 883 (N.D. Ill. 2005) (citations omitted). “[A] defendant is vicariously liable for copyright infringement if it has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.” Hard Rock Cafe Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143, 1150 (7th Cir. 1992) (internal quotation marks omitted).
Thus, holding that myVidster is not a direct infringer—or that its users are not direct infringers—will not leave Flava Works without a path to a possible remedy. If Flava Works can show that myVidster or its users had knowledge of infringement and that their activities were intended to materially contribute to that infringement, myVidster or its users could potentially be liable as contributory infringers. If Flava Works can show that myVidster or its users had the right and ability to supervise the particular infringing performances and also had a direct financial interest in those performances, myVidster or its users could potentially be liable as vicarious infringers. But one cannot simply say, as the court below did, that myVidster must be enjoined because there has been infringement by someone, somewhere, that was facilitated by the operation of the myVidster website.
Section 106 gives the right holder the exclusive right (1) "to do," and (2) "to authorize" a public performance.
The exclusive rights "to authorize" a public performances is meant "to avoid any questions as to the liability of contributory infringers." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 61.
So one who violates the right "to do" a public performance is a direct infringer, and one who violates the right "to authorize" a public performance is a contributory infringer. The important thing to note is that both are infringers of the 106 right. Whether they're a primary or secondary infringer doesn't matter. Both are infringers, and both are treated the same under the Act.
Section 501 defines infringement:
Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
Since only the right holder has the exclusive right "to do" or "to authorize" a public performance, anyone who violates either action ("to do" or "to authorize") is an infringer.
Quiroa pleaded guilty to Section 506(a)(1)(A), which provides:
(a) Criminal infringement.--(1) In general.--Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed--(A) for purposes of commercial advantage or private financial gain;
Notice how it only refers to one who infringes a copyright (as is defined in Section 501), and makes no reference to whether it was a violation of the right "to do" or "to authorize." Either one is sufficient to impose criminal liability under Section 506.
You are saying that one who violates the "to do" is a direct infringer, but one who only violates the "to authorize" is an aider and abettor. I don't see how that matters. One who violates the right "to authorize" a public performance is an infringer, and Section 506 clearly makes that infringement a criminal act without the need to bring in aiding and abetting like is outlawed in 18 U.S.C. 2.
The Copyright Act makes linking a crime whether you consider it to be a violation of the right "to do" or "to authorize" a public performance. It matters not which one in particular the defendant has done since both are treated equally.
Actually, his case is pretty easy to figure out: The sites were directly and aggressively marketing itself as a source to watch the Superbowl and other major sporting events. There isn't much to hide from here, the guy was willfully and intentionally putting content that was knowingly infringing on his sites, and marketing it accordingly.
There isn't much wiggle room here.
I agree. He intentionally embedded links to videos hosted elsewhere so people could stream them. I think his conduct is a direct violation of the public performance right.
I think you're misreading those cases you mention.
The Ninth Circuit panel in Kelly v. Arriba Soft actually said that inline linking directly violates the public display right:
Although Arriba does not download Kelly's images to its own server but, rather, imports them directly from other web sites, the situation is analogous to Webbworld. By allowing the public to view Kelly's copyrighted works while visiting Arriba's web site, Arriba created a public display of Kelly's works. Arriba argues that Kelly offered no proof that anyone ever saw his images and, therefore, there can be no display. We dispose of this argument, as did the court in Webbworld, because Arriba made the images available to any viewer that merely visited Arriba's site. Allowing this capability is enough to establish an infringement; the fact that no one saw the images goes to the issue of damages, not liability.
Kelly v. Arriba Soft, 280 F.3d 934, 946 (9th Cir. 2002) opinion withdrawn and superseded on denial of reh'g, 336 F.3d 811 (9th Cir. 2003) (emphasis added).
That opinion was withdrawn for procedural reasons, not because the reasoning was unsound, but it shows you that the issue is far from settled. The passage I quoted endorses the argument that merely making an image available is a public display, even if there's no proof that any clicked on the link or displayed it. It also rejects the "server test" reasoning.
The Ninth Circuit in Perfect 10 found that Google would be a contributory infringer for linking:
Here, the district court held that even assuming Google had actual knowledge of infringing material available on its system, Google did not materially contribute to infringing conduct because it did not undertake any substantial promotional or advertising efforts to encourage visits to infringing websites, nor provide a significant revenue stream to the infringing websites. Perfect 10, 416 F.Supp.2d at 854–56. This analysis is erroneous. There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google's assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps.
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007) (emphasis added).
Karl, with respect, I think you and Mike view things too narrowly. The law on linking, embedding, and streaming is far from settled, but I think there are good arguments for why it's broader than either of you see it.
Quiroa linked to copyrighted works so they could be streamed. Since it's streaming, only the public performance right is implicated. I think we agree on that. That's what the Second Circuit said is United States v. ASCAP, and I think that's the correct view. If there's no downloading for later viewing, then the mechanical rights of distribution/reproduction are not implicated (ignoring for now the possibility of RAM copies and such).
Embedding a video to be streamed by others violates the public performance right. There is no doubt about that. The debate is over whether the embedder is a direct or indirect infringer. You say that it's only indirect liability. I think that's reasonable, since one who embeds authorizes the performance (and only the right holder has the right to authorize performances). The embedder is still an infringer, but their liability is secondary, not primary. That, of course, doesn't really matter since they're still liable for the infringement, but there is the distinction to be made.
But there is also an argument that the embedder is a direct infringer. To be directly liable for infringement of the public performance right, "a defendant must have engaged in conduct that is volitional or causally related to that purported infringement." In re Cellco Partnership, 663 F.Supp. 2d 363, 370 (S.D.N.Y. 2009). Furthermore, "to impose direct liability, there must be a nexus sufficiently close and causal to the illegal infringement that one could conclude that the defendant himself trespassed on the exclusive domain of the copyright owner." Id. (internal citations and brackets omitted).
An embedder's conduct is volitional and causally related to the performance, and the nexus is sufficiently close. In fact, there is an argument that merely embedding the video is itself a performance, even if no one actually clicks "play" and watches the video. Posner pointed out that this is a possibility, and there's plenty of case law to support it. The key is in understanding that a public performance requires only that the video is able to be perceived, not that it has actually been perceived. As Nimmer points out, "a public performance merely requires that such performance be open to, that is, available to, a substantial number of persons. It is not necessary that they in fact attend or receive the performance." 2-8 Nimmer on Copyright § 8.14 (internal quotation marks omitted).
In fact, the House Report discussing the public performance right is instructive:
This language makes doubly clear that] a performance made available by transmission to the public at large is “public” even though the recipients are not gathered in a single place, and even if there is no direct proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms....; they are also applicable where the transmission is capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public.
H.R. Rep. No. 83, 90th Cong., 1st Sess. at 29. Note the word "capable."
As for cases saying that linking is infringement simpliciter, there are several. Try this:
Litigation over copyright protections for live internet webcasts has not made its way into controlling Fifth Circuit opinions (nor any other circuit court opinions that this court could find). Opinions addressing copyright protection for live television broadcasts, however, provide appropriate, analagous guidance in this case. In National Football League v. PrimeTime 24 Joint Venture, the Court upheld a permanent injunction against Defendant PrimeTime, which provided unauthorized satellite transmissions of the NFL's copyrighted weekly live broadcasts of football games to viewers in Canada. 211 F.3d 10 (2d Cir.2000). PrimeTime had argued that “capturing or uplinking copyrighted material and transmitting it to a satellite [did] not constitute a public display or performance of that material.” Id. at 12. The court rejected that argument by reviewing similar copyright infringement actions, as well as legislative history, and stated:
We believe the most logical interpretation of the Copyright Act is to hold that a public performance or display includes each step in the process by which a protected work wends its way to its audience. Under that analysis, it is clear that PrimeTime's uplink transmission of signals captured in the United States is a step in the process by which NFL's protected work wends its way to a public audience. In short, PrimeTime publicly displayed or performed material in which the NFL owns the copyright. Because PrimeTime did not have authorization to make such public performance, PrimeTime infringed the NFL's copyright.Id. (internal quotations and citations omitted).
The court finds the reasoning used by the Second Circuit to be sound and persuasive; and the court adopts the reasoning used in Prime Time. Davis essentially attempts to make the same argument as PrimeTime by stating that he has an “affirmative defense” because he provides the “same audio webcast link freely distributed by ClearChannel.” Using the same approach, the court determines that the unauthorized “link” to the live webcasts that Davis provides on his website qualifies as a copied display or performance of SFX's copyrightable material.
Live Nation Motor Sports, Inc. v. Davis, 3:06-CV-276-L, 2007 WL 79311 (N.D. Tex. Jan. 9, 2007) (emphasis added).
So it's not as simple or as cut and dried as you and Mike seem to think. Linking to infringing material is itself infringement. Whether it's direct or indirect infringement is debatable. I know you both like the server test, but that test has only been adopted by the Ninth Circuit. Others have rejected it. Either way, the server test only speaks to direct liability, and it doesn't say that a linker is not liable. It only says their not liable as a direct infringer. But so what? They're still liable and subject to the full range of remedies under the Act.
Bottom line is that the law is unsettled, and there is support in the case law and commentary for more than one view.
He was writing in the context of "how people consume your product". What does content have to do with bats?
He's saying that if someone violates your rights, it's you that needs to changes and not the lawbreaker. My point was that if I were to violate his rights by hitting him in the face with a baseball bat, he probably wouldn't feel like it was him that needed to change. He'd, naturally and correctly, blame me for violating his rights. His post represents the whole blame-the-victim idiocy that TD promotes. I think it's ridiculous and juvenile.
Just look at the way you guys are treating the AC musician who has done nothing wrong. You're blaming him for the wrongs that are being done to him, instead of blaming those who consciously violate his rights. It's disgusting, and it makes me sad that so many of the TD faithful are so callous about their wrongdoings.
On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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If it's on a website, usually there is a link to the small print. Or if it's a shrinkwrap license, the terms are in the software or in a brochure or on the internet. The terms are out there. Just because sometimes the terms aren't known until after the purchase is made doesn't make them any less enforceable or agreed to. There's tons of case law out there about contract formation, and fact is that contract law is centuries old. Most of the stuff is governed by state law or the UCC. Just because you don't understand it, don't assume that it doesn't make sense. This stuff is well-settled as commerce has been around way longer than any of us.
On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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Let's enforce all laws on the books with equal fervor, not just the violent crimes known as felonies, but also the little known and long ago forgotten laws we all agree are simply ridiculous - because, you know ... that's the law.
for example, in New York:
- It is illegal for a woman to be on the street wearing “body hugging clothing”.
but also a
- Women may go topless in public, providing it is not being used as a business.
In California:
- You may only throw a frisbee at the beach in Los Angeles County, CA with the lifeguard’s permission.
and
- Nobody is allowed to ride a bicycle in a swimming pool.
ref: www.dumblaws.com/
I'm sure there are a few "dumb laws" on the books. Laws are written by humans, and no human-built system is perfect. Moreover, through prosecutorial discretion, those laws aren't enforced. But so what? You throw out the FUD but you don't say what you think it means.
Are you suggesting that if you can find one "dumb law," then that means we can all rightfully violate other people's copyright rights? I think that argument is just sad.
As JFK said, if you put yourself above the law, then you do injustice to your neighbor. I know such talk of duty and honor doesn't ring true with many of Mike's Gang, but I would hope that such notions mean something to you, abc.
On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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Whine all you want about the law, but respect it because it is the law. As JFK put it:Source: http://www.jfklibrary.org/Research/Ready-Reference/JFK-Speeches/Radio-and-Television-Report-to-the-N ation-on-the-Situation-at-the-University-of-Mississippi.aspx
On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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Yes, and like any open appeal to authority shill, the law is the law and the end-all, be-all in your eyes. Because they can never be wrong after all.
With people like you in the world, we get the following historical examples of "the law" in action:
"Get to the back of the bus, old negro woman! Go where you belong!"
"Get off these school grounds little negro girl! Go to school with your own kind! Stop infecting our white children!"
"Back to work n*gger! Pick that cotton or I'll have you beaten some more! The law says I can do what I want with you!"
What a world you live in. It's no wonder you support anything that extends or expands authority of those at the top at the expense of everyone else.
Wow. Are you really comparing your need to not pay for recreational content on par with slavery and institutionalized racism? You guys get more deluded each day. We're talking about someone's property rights in a work that they spent time, money, and energy creating. Practically every country on this planet recognizes these rights, and many consider them to be human rights. And you think that since there was once slavery, that means you are justified in ignoring these property rights? Wow. Just wow. You guys are really quite pathetic. Mike's bread and butter, but pathetic.
On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
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On the post: Why Does Copyright Last 70 Years After Death... But Licenses Expire At Death?
The correct answer is that copyright lasts for lifetime + 70 because that's what's provided in the Copyright Act. And if you agreed to license works with a condition that the license terminates at death, then that's what you agreed to and that's what happens. If you don't like the license, don't do business with the licensor. This isn't rocket science, and your trotting out the Constitution--again--is just stupid. This has nothing to do with the Constitution.
On the post: As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
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Just adding a statement that they don't have knowledge won't mean a thing if the plaintiff can show there was actual or constructive knowledge.
The DMCA safe harbors would protect the search engine, but again, only if the search engine has no knowledge, either actual or constructive, of the infringing link.
Returning revenues to the right holder would be a nice gesture, but it would have no bearing on the issue of liability. The search engine would still be liable for the infringing links it knowingly provided.
Google avoids liability because it takes down infringing links when given notice of their existence. Thus, Google doesn't knowingly and intentionally provide any infringing links.
On the post: As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
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The law imputes the intent to cause the natural consequences of its action. Providing a link to infringing material naturally causes infringement to occur by those who click on the link. So one who knowingly provides a link to infringing material is liable for infringement.
Linking websites like the one at issue here are liable for the infringement that occurs via the links provided. Quiroa can't claim to not have knowledge (i.e., intent) like Google can with its search results. He knew the links he provided were for infringement, so he's responsible for the infringement that occurs using the links.
On the post: As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
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I would recommend reading what actual lawyers say about the case. Mike's reading of it is a bit off.
Barry Sookman has a great writeup: http://www.barrysookman.com/2012/08/08/understanding-flava-works-v-myvidster-does-inline-linking-inf ringe-copyright/
Arron Bartell has another: http://tmtlaw.default.wp1.lexblog.com/2012/08/15/not-so-fast-did-the-7th-circuit-really-just-say-its -okay-to-embed-copyright-infringing-videos-on-the-web/
I recommend reading the amicus brief filed by Google and Facebook in the myVidster case: http://docs.justia.com/cases/federal/appellate-courts/ca7/11-3190/17/0.pdf
They explain that linking to infringing material can itself be infringement, though they argue that it's indirect (but not direct) infringement:(emphasis added).
On the post: As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
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Section 106 gives the right holder the exclusive right (1) "to do," and (2) "to authorize" a public performance.
The exclusive rights "to authorize" a public performances is meant "to avoid any questions as to the liability of contributory infringers." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 61.
So one who violates the right "to do" a public performance is a direct infringer, and one who violates the right "to authorize" a public performance is a contributory infringer. The important thing to note is that both are infringers of the 106 right. Whether they're a primary or secondary infringer doesn't matter. Both are infringers, and both are treated the same under the Act.
Section 501 defines infringement:Since only the right holder has the exclusive right "to do" or "to authorize" a public performance, anyone who violates either action ("to do" or "to authorize") is an infringer.
Quiroa pleaded guilty to Section 506(a)(1)(A), which provides:Notice how it only refers to one who infringes a copyright (as is defined in Section 501), and makes no reference to whether it was a violation of the right "to do" or "to authorize." Either one is sufficient to impose criminal liability under Section 506.
You are saying that one who violates the "to do" is a direct infringer, but one who only violates the "to authorize" is an aider and abettor. I don't see how that matters. One who violates the right "to authorize" a public performance is an infringer, and Section 506 clearly makes that infringement a criminal act without the need to bring in aiding and abetting like is outlawed in 18 U.S.C. 2.
The Copyright Act makes linking a crime whether you consider it to be a violation of the right "to do" or "to authorize" a public performance. It matters not which one in particular the defendant has done since both are treated equally.
Does that make sense?
On the post: As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
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There isn't much wiggle room here.
I agree. He intentionally embedded links to videos hosted elsewhere so people could stream them. I think his conduct is a direct violation of the public performance right.
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The Ninth Circuit panel in Kelly v. Arriba Soft actually said that inline linking directly violates the public display right:Kelly v. Arriba Soft, 280 F.3d 934, 946 (9th Cir. 2002) opinion withdrawn and superseded on denial of reh'g, 336 F.3d 811 (9th Cir. 2003) (emphasis added).
That opinion was withdrawn for procedural reasons, not because the reasoning was unsound, but it shows you that the issue is far from settled. The passage I quoted endorses the argument that merely making an image available is a public display, even if there's no proof that any clicked on the link or displayed it. It also rejects the "server test" reasoning.
The Ninth Circuit in Perfect 10 found that Google would be a contributory infringer for linking:Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007) (emphasis added).
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Quiroa linked to copyrighted works so they could be streamed. Since it's streaming, only the public performance right is implicated. I think we agree on that. That's what the Second Circuit said is United States v. ASCAP, and I think that's the correct view. If there's no downloading for later viewing, then the mechanical rights of distribution/reproduction are not implicated (ignoring for now the possibility of RAM copies and such).
Embedding a video to be streamed by others violates the public performance right. There is no doubt about that. The debate is over whether the embedder is a direct or indirect infringer. You say that it's only indirect liability. I think that's reasonable, since one who embeds authorizes the performance (and only the right holder has the right to authorize performances). The embedder is still an infringer, but their liability is secondary, not primary. That, of course, doesn't really matter since they're still liable for the infringement, but there is the distinction to be made.
But there is also an argument that the embedder is a direct infringer. To be directly liable for infringement of the public performance right, "a defendant must have engaged in conduct that is volitional or causally related to that purported infringement." In re Cellco Partnership, 663 F.Supp. 2d 363, 370 (S.D.N.Y. 2009). Furthermore, "to impose direct liability, there must be a nexus sufficiently close and causal to the illegal infringement that one could conclude that the defendant himself trespassed on the exclusive domain of the copyright owner." Id. (internal citations and brackets omitted).
An embedder's conduct is volitional and causally related to the performance, and the nexus is sufficiently close. In fact, there is an argument that merely embedding the video is itself a performance, even if no one actually clicks "play" and watches the video. Posner pointed out that this is a possibility, and there's plenty of case law to support it. The key is in understanding that a public performance requires only that the video is able to be perceived, not that it has actually been perceived. As Nimmer points out, "a public performance merely requires that such performance be open to, that is, available to, a substantial number of persons. It is not necessary that they in fact attend or receive the performance." 2-8 Nimmer on Copyright § 8.14 (internal quotation marks omitted).
In fact, the House Report discussing the public performance right is instructive:H.R. Rep. No. 83, 90th Cong., 1st Sess. at 29. Note the word "capable."
As for cases saying that linking is infringement simpliciter, there are several. Try this:Live Nation Motor Sports, Inc. v. Davis, 3:06-CV-276-L, 2007 WL 79311 (N.D. Tex. Jan. 9, 2007) (emphasis added).
So it's not as simple or as cut and dried as you and Mike seem to think. Linking to infringing material is itself infringement. Whether it's direct or indirect infringement is debatable. I know you both like the server test, but that test has only been adopted by the Ninth Circuit. Others have rejected it. Either way, the server test only speaks to direct liability, and it doesn't say that a linker is not liable. It only says their not liable as a direct infringer. But so what? They're still liable and subject to the full range of remedies under the Act.
Bottom line is that the law is unsettled, and there is support in the case law and commentary for more than one view.
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He's saying that if someone violates your rights, it's you that needs to changes and not the lawbreaker. My point was that if I were to violate his rights by hitting him in the face with a baseball bat, he probably wouldn't feel like it was him that needed to change. He'd, naturally and correctly, blame me for violating his rights. His post represents the whole blame-the-victim idiocy that TD promotes. I think it's ridiculous and juvenile.
Just look at the way you guys are treating the AC musician who has done nothing wrong. You're blaming him for the wrongs that are being done to him, instead of blaming those who consciously violate his rights. It's disgusting, and it makes me sad that so many of the TD faithful are so callous about their wrongdoings.
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